The following is a post from Samantha K. Harris, Esq., and Michael Thad Allen, Esq. that originally appeared here on HigherEducationLaw.org

Samantha Harris is a graduate of Princeton University and the University of Pennsylvania Law School. For more than 15 years, she has advised students, faculty, administrators, and attorneys on issues of free speech and due process on campus. She lectures regularly about students’ rights at campuses and conferences around the country and has been published in Inside Higher Ed, the New York Daily News, Reason, The Washington Post, Vox, and other publications. She is of counsel at Mudrick & Zucker, where she represents students and faculty in free speech, due process, and sexual misconduct cases.

Michael Thad Allen is a former university professor and left a tenured position at a major research university (the Georgia Institute of Technology) to earn a law degree at Yale Law school. As a university professor, Michael Allen dedicated his scholarship to social justice, researching and writing about the Holocaust and civil rights. His book, The Business of Genocide (University of North Carolina Press) received the 2002 German Studies Association best book award. He is now the principal of Allen Law, LLC and represents both accused students as well as victims in student misconduct hearings at universities and in federal court. Turning to a career in student rights law has enabled Attorney Allen not just to study civil rights but to defend them.

As the United States takes drastic measures to contain the coronavirus, universities across the country have sent students home and shifted to online learning for the semester. There are likely to be a host of legal issues raised by this transition, including concerns about student data privacy and equal access to the resources necessary to continue learning at home. There will also inevitably be harassment issues that arise in the online learning environment — issues that raise questions about the First Amendment and about universities’ potential liability for students’ off-campus, online expression.

Broadly speaking, the types of student expression likely to be at issue can be divided into three categories: harassment in school-sponsored online forums; online harassment in non-university forums; and what might be called a new genre of “viral” harassment.

Harassment in Online Courses

First, there will inevitably be complaints of harassment arising from student expression that takes place in the context of online courses or other university-sponsored online settings. Given the tendency of universities to assert “jurisdiction” over off-campus activities, we should expect universities to react to complaints arising from online forums associated with remote student events, even if these are not directly university sponsored.

We know that federal laws like Title IX, prohibiting sex discrimination (including sexual harassment), applies to online-only institutions. It should therefore apply to online classes hosted by traditional universities as well.

That doesn’t mean, however, that every offensive comment made online is harassment. To constitute sexual harassment, the U.S. Supreme Court held in Davis v. Monroe County Board of Education (1999)conduct must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” And if the conduct does not rise to this level, it is likely protected by the First Amendment at public universities, and at most private universities by institutional policies promising free speech.

So while universities’ obligation to prevent harassment in the learning environment extends to the virtual campus, institutions cannot punish every instance of offensive online speech — they must ensure that only conduct that rises to the level of unprotected harassment is being punished.

This is important, because there will likely be public pressure on universities to punish offensive online remarks, particularly if those remarks have been screenshotted and publicized. But public pressure cannot justify infringement on students’ First Amendment rights or the violation of institutional promises of free speech.

Other Communications Between Students

There are also likely to be allegations of harassment that arise from interactions between students over social media or other non-university platforms. This is a very different situation from the online course discussed above.

The Supreme Court held in Davis that educational institutions can be liable under Title IX for “deliberate indifference” to peer-on-peer sexual harassment — but only if the university “exercises substantial control over both the harasser and the context in which the known harassment occurs.”

A court would likely find “substantial control” exists in an online classroom, but what about when students from the same university are interacting online outside of class? Or through servers that are not university property?

The law is still developing in this area. In Feminist Majority Foundation v. Hurley (2018), the U.S. Court of Appeals for the Fourth Circuit addressed this question and found that a university could be liable for student-on-student harassment taking place over social media. But the court’s reasoning might break down when there is no physical campus to speak of.

In Hurley, members of the student group Feminists United on Campus (FUC) sued the University of Mary Washington (UMW) under Title IX after the group found itself the target of significant online hostility for protesting the student senate’s decision to allow fraternities on campus and urging the University to punish UMW’s rugby team for bawdy chants at an off-campus party. FUC alleged that the university had been deliberately indifferent to online harassment that took place on the now-defunct platform Yik Yak. Yik Yak allowed users within a certain geographic radius to post anonymous messages, including derogatory messages about FUC members. Group members complained of sexual harassment to the university, and then sued after they found the university’s response unsatisfactory.

UMW claimed that it could not be liable for the offensive comments posted to Yik Yak, because it did not — as required by Davis — have control over the context in which the alleged harassment occurred. The Fourth Circuit disagreed, holding that the university had the “technical capacity to control the means by which the harassing and threatening messages were transmitted” (it could, for example, have “disabled access to Yik Yak campuswide”), and also that it “could have conducted mandatory assemblies to explain and discourage cyber bullying and sex discrimination, and it could have provided anti-sexual harassment training to the entire student body and faculty.”

While this holding suggests that universities can’t simply wash their hands of online harassment between students, even on non-university forums, it also seems likely that COVID-19 has made a new reality. Students are not together on a physical campus, and the university cannot be expected to exercise “substantial control” over online, out-of-school activities.

This is, however, unsettled and may nevertheless still arise in university disciplinary proceedings.

Going Viral Gains New Meaning

Within and beyond universities, there is increased monitoring as well as debate over responses to the current pandemic. This includes pressure on universities to punish students who flout public-health recommendations or who make jokes about the pandemic’s origin that are perceived as racially insensitive.

At the University of Albany, for instance, students threw a party featuring buckets of Corona beer and partygoers in surgical masks. This took place in late February, which already seems like a bygone era. But instantaneously, demands arose on campus that the university treat the incident as a “hate crime.” The Asian American Alliance also complained that the party was insensitive and stereotyped Asian people. Washington State University has posted a warning message on its website about “Harassment due to COVID-19,” urging members of the university community to be vigilant and to report, “bias behaviors” directed at members of the university’s Asian American community related to the virus.

There has also been a general outcry over students who celebrated spring break in Florida in defiance of the CDC’s social distancing recommendations. Inebriated students attracted international attention as well as local scorn in Florida, prompting some municipalities to close beaches even as the governor refused to issue a state order. It was not long before individual universities began to appear in the news because their students contracted the coronavirus during these spring break escapades.

Where individual students and their colleges and universities are identified for doing typically dumb college-student things, these will no longer simply be matters of public hilarity. Rather, the pressure will be on universities to do their part to address the public-health crisis. Therefore, students can likely expect university discipline if they are caught violating rapidly changing public-health laws or expectations, not to mention vague and overbroad school policies.

For example, the University of Connecticut Student Code prohibits “endangering behavior,” which “includes, but is not limited to, conduct that threatens or endangers the health or safety of any person including one’s self.” Broad provisions like this one could certainly extend to the type of spring-break shenanigans captured on Florida’s beaches, but they could also encompass expression, whether captured online or off, about the current pandemic that others interpret as harassing or simply dangerous.

For example, we could easily expect discipline to extend to controversies over whether it is “racist” to refer to the Covid-19 virus as the “Chinese Flu,” the “Kung-Flu,” or any number of other names offensive to others.

In addition, often to their credit, universities have acted quickly to supplement existing rules with new measures designed to inhibit the spread of the virus. To the extent that on- or off-line expressions appear to break these rules or (in the sophomoric tradition of students of all epochs) to simply mock school authority, we should expect college and university enforcement actions.

The enforcement of COVID-19 rules could also quickly overlap with Title IX enforcement. For example, if students transfer the disease to each other in the context of sexual encounters, although COVID-19 is not an STD, university student-life administrators may react with investigations and sanctions, no differently from the way they would under normal circumstances in the on-campus learning environment.

The bottom line is that whether students are communicating in person or online, allegations of harassment will inevitably arise. Attorneys for both universities and higher education attorneys who represent students and faculty who face censorship or harassment should be aware of th